By John Hargreaves, CCAP Staff Attorney

Severe Sentence for a Technical Sex-Registration Violation Found Unconstitutional in Carmony – Third District Court of Appeal Curtails Life Sentence

by John Hargreaves, CCAP Staff Attorney

On March 25, 2005, the Third District Court of Appeal in People v. Carmony (C038802), overturned a 26-years-to-life sentence, finding it in violation of the state and federal prohibitions against cruel and unusual punishment. Justice Blease, joined by Justice Sims, wrote:

“It is a rare case that violates the prohibition against cruel and unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1072.)

Carmony was required to register as a sex offender after being convicted of assaulting his then-girlfriend’s 9-year-old daughter in 1983. In 1999, he registered with authorities a month before his birthday, as required. (Former Pen. Code, sec. 290, subd. (a)(1)(A).) However, he failed to update his registration with the same information within five working days of his birthday as also required by law. (Former Pen. Code, sec. 290, subd. (a)(1)(c).) The trial court in Shasta County sentenced Carmony to 25-years-to-life, plus a one-year consecutive term for the prior prison term.

After finding the sentence in violation of the Eighth Amendment of the United States Constitution, the opinion turned to article I, section 17 of the California Constitution, and concluded as follows:

“[A]n enhanced sentence of 25-years-to-life for the duplicate registration offense committed by defendant shocks the conscience of this court. We therefore hold it to be cruel and unusual punishment in violation of article 17.” (Carmony, at p. 1089.)

But the panel was not unanimous in this view point. Justice Nicholson dissented, saying that Carmony’s case did not present a “bottom-of-the-well scenario,” noting for example that “It would be cruel and unusual punishment to torture a third-striker or to give a life term to a petty thief with no prior record.” (Carmony, at p. 1091.) Justice Nicholson also accused the majority of departing from its own precedent in People v. Meeks (2004) 123 Cal.App.4th 695, where the court found that a life sentence for failing to register as a sex offender after moving and that the application of the same requirement to within five days of his birthday was not grossly disproportionate. (Carmony, at p. 1090.)

In a prior ruling in Mr. Carmony’s case, the Third District had found that the Shasta County trial court had abused its discretion in refusing to strike two prior convictions. In July of last year, the California Supreme Court reversed that ruling and remanded the case for further proceedings consistent with its opinion. (People v. Carmony (2004) 33 Cal.4th 367, 380.) In a concurring opinion, Justice Moreno, joined by Justice Chin cautioned “subject to the caveat that the sentence may yet be overturned on constitutional grounds.” (Id., at p. 381.)

The Third District’s recent Carmony decision undoubtedly goes against the trend of rulings of the United States Supreme Court and California courts on challenges to life sentences based on cruel and/or unusual punishment grounds. However, the opinion reminds us in several places that this is one of those “rare” cases that crosses the proportionality threshold. “The instant offense was a passive, nonviolent, regulatory offense that posed no direct or immediate danger to society.” (Carmony, at p. 1078.) Further, unlike the defendant in Meeks, Carmony had recently re-registered, and had not moved in the interim. As a result, “his offense was the most technical and harmless violation of the registration law we have seen.” (Carmony, at p. 1078.)

Although Carmony is unlikely to ignite a major reform in the Three Strikes Law, it is a positive step towards curtailing the excesses of its application. As Blease wrote:

“A one-size-fits-all sentence does not allow for gradations in culpability between crimes and therefore may be disproportionate to the crime when as here, the crime is minor and the penalty severe.”(Carmony, at p. 1088.)

Defense counsel thus are urged to continue to vigorously press cruel and/or unusual arguments on federal and state grounds in Three Strikes cases.

Congratulations to CCAP panel attorney Victor Haltom for his victory in this case!